Hogue v. Royse City, Tex., 90-1037

• Decision Date: 28 August 1991
• Docket Number: No. 90-1037,90-1037
• Citation: 939 F.2d 1249
• Parties: 56 Fair Empl.Prac.Cas. 1264, 57 Empl. Prac. Dec. P 40,949, 20 Fed.R.Serv.3d 658 Claud Allen HOGUE, Plaintiff-Appellant, Cross-Appellee, v. ROYSE CITY, TEXAS, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1249

939 F.2d 1249

56 Fair Empl.Prac.Cas. 1264,

57 Empl. Prac. Dec. P 40,949, 20 Fed.R.Serv.3d 658

Claud Allen HOGUE, Plaintiff-Appellant, Cross-Appellee, v. ROYSE CITY, TEXAS, Defendant-Appellee, Cross-Appellant.

No. 90-1037.

United States Court of Appeals Fifth Circuit.

Aug. 28, 1991.

Marcos G. Ronquillo, Ronquillo & Castaneda, Dallas, Tex., for plaintiff-appellant cross-appellee.

Ronald Clark and Deborah Sterling Burleson, Henderson, Bryant & Wolfe, Sherman, Tex., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Texas.

Before WISDOM, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Claud Hogue (Hogue) appeals a final summary judgment, which was rendered in favor of defendant-appellee Royse City, Texas (the City) on the ground that Hogue's federal claim constituted the same cause of action previously decided in state court and therefore was barred under the doctrine of res judicata. The City cross appeals, alleging that the district court erred in denying attorneys' fees and costs to the City; alternatively, the City seeks damages for a frivolous appeal pursuant to Fed.R.App.P. 38. We affirm the judgment of the district court; however, we deny the City's request for damages.

Facts and Proceedings Below

The City hired Hogue as police chief on July 16, 1985. Hogue was 52 years old at the time. Just under a year later, on June 17, 1986, the city council voted unanimously that it lacked confidence in Hogue, pursuant to Texas statute, ¹ and accordingly terminated his employment the next day. On June 16, 1988, Hogue simultaneously filed two suits against the City, one each in state and federal court. In his state court suit, Hogue alleged (1) that he was wrongfully discharged; and (2) that the City breached its duty of good faith and fair dealing by refusing him an opportunity to appear before the city council and defend the allegations against him. Hogue's federal court complaint alleged (1) that the City terminated him on the basis of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (the ADEA); and (2) that the City wrongfully discharged him because he refused to set speed traps.

On April 27, 1989, the state district court entered final judgment on the City's summary judgment motion that Hogue take nothing on both claims. Hogue did not pursue an appeal in the state courts. The City sent a letter to Hogue's attorney asserting that the federal suit was then barred, under res judicata, by the state court judgment, and requesting that Hogue dismiss his federal suit. Hogue, however, decided to continue the suit. The City then filed a motion for summary judgment in the federal district court, alleging res judicata, and also requested sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. Sec. 1927.

On October 10, 1989, the federal district court granted summary judgment to the City on the ground of res judicata. Final judgment was entered on October 25, 1989. Hogue filed a motion for new trial on November 3, and, on November 22, filed a notice of appeal on the granting of summary judgment in favor of the City. The City filed its cross appeal on December 11, even though the district court had not yet ruled on Hogue's motion for new trial. On December 14, the district court overruled Hogue's motion for new trial and clarified the final judgment, allowing costs of court to the City, but denying attorneys' fees and costs of defense.

This Court dismissed both Hogue's and the City's appeals on January 9, 1990, for want of jurisdiction because the notices were filed while a motion for new trial was pending, and thus were rendered ineffective. See Acosta v. Louisiana Dept. of Health & Human Resources, 478 U.S. 251, 106 S.Ct. 2876, 2877-78, 92 L.Ed.2d 192 (1986) (stating that a notice of appeal is ineffective unless filed after entry of judgment on a Fed.R.Civ.P. 59 motion). Hogue immediately filed a second notice of appeal, which stated that he appealed "from denial of motion for new trial." Hogue also attached a copy of his original notice of appeal as well as a copy of the district court's order of December 14, 1989. The City timely filed its cross appeal on the issue of attorneys' fees, costs, and damages under Fed.R.App.P. 38.

Discussion

I. Jurisdiction

At the outset, we consider the City's contention that this Court is without jurisdiction because Hogue failed to file a proper notice of appeal from the judgment of the district court. The City alleges that Hogue's notice of appeal, which states that he appeals the denial of his motion for new trial, is fatally defective. The City correctly notes that an order denying a new trial may not be appealed, since the appeal should be taken from the judgment itself. See State National Bank of El Paso v. United States, 488 F.2d 890, 893 (5th Cir.1974), reh'g denied, 490 F.2d 992. From that premise, the City concludes that Hogue has not perfected an appeal from a final judgment.

The Supreme Court rejected a similar argument in State Farm Mutual Auto. Insurance Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956). In a per curiam opinion, the Court reversed the Ninth Circuit, which had dismissed the appeal on the ground that the appellant, in its notice of appeal, had designated the trial court's denial of its motion for new trial rather than the judgment against it. Further, in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962), the Court held that if, from the proceedings on appeal and from the notice of appeal itself, it becomes apparent that the appeal was intended to have been taken from an unspecified judgment, the notice may be construed as bringing up the unspecified order for review.

The force of Palmer and Foman are not undercut in their applications to this character of case by Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), as we recently explained in Osterberger v. Relocation Realty Service Corporation, 921 F.2d 72, 73-74 (5th Cir.1991) ("... every Circuit, including the Fifth, has treated an appeal from an order denying a motion for new trial as an appeal from the adverse judgment itself.... Torres has no effect on the long line of cases that have held that an appeal erroneously taken from a denial of a motion for new trial, rather than from the underlying judgment, should be treated as an appeal from the judgment.")

Here, Hogue's intent to appeal a final judgment was obvious. To his second notice of appeal, Hogue attached a copy of his original notice of appeal and the district court's final order. Taking the two notices and the appeal papers together, we conclude that Hogue's intention to seek review of the summary judgment was manifest. Further, the City was in no way prejudiced, as is evidenced from its detailed brief and argument on the merits of the summary judgment on appeal. Therefore, this Court treats Hogue's attempt to appeal the denial of his motion for new trial as an effective, although inept, appeal of the underlying judgment. We turn now to the merits.

II. Summary Judgment

A. Standard of Review

A district court may render summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing the district court's decision, we apply the same standard, viewing the record and inferences from the facts in the light most favorable to the nonmovant. GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 714 (5th Cir.1985).

The district court in this case rendered summary judgment on the ground that the earlier Texas state court summary judgment barred the pending federal suit under the doctrine of res judicata, or claim preclusion. ² In determining whether res judicata bars Hogue's federal claims as a matter of law, this Court must give the state court judgment the same preclusive effect as would be given that judgment under Texas law. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). We now turn to an analysis of Hogue's claims under Texas res judicata principles.

B. Texas Res Judicata Principles

Under Texas law, an existing final judgment rendered upon the merits ³ by a court of competent jurisdiction is conclusive of the rights of the parties in all other actions on the points at issue and adjudicated in the first suit. Flores v. Edinburg Consol. Independent School Dist., 741 F.2d 773, 776 (5th Cir.1984) (citing Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971)), reh'g denied, 747 F.2d 1465. Further, the rule of res judicata bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former action as well as those that were actually tried. Id. The preclusion of issues not actually litigated or decided in the prior action thus turns on whether the causes of action in the successive suits are the same. See Gilbert v. Fireside Enterprises Inc., 611 S.W.2d 869, 871 (Tex.Civ.App.--Dallas 1980, no writ).

1. Same cause of action

Texas courts have not adopted a fixed view of what constitutes a particular "cause of action." In Abbott Laboratories v. Gravis, 470 S.W.2d 639, 641-42 (Tex.1971), the Texas Supreme Court held that a suit for products liability was barred by a prior suit based on negligence because both suits involved a tort action resulting from the furnishing of the same drug for the same operation on the same person. However, in Griffin v. Holiday Inns of America, 496 S.W.2d 535, 537-38 (Tex.1973), the Texas Supreme Court, citing Abbott for general res judicata principles, held that a prior suit based on breach of contract did not bar a later suit based...